Used, abused and resold: “first sale” applies to works made abroad

Overshadowed by arguments about same-sex marriage rights and affirmative action, the court handed down an opinion that has a global impact on copyright and consumerism. Although it is unlikely that any American will realize the ripple of change considering many didn’t know there was ever an argument about it.

That issue was whether the “first sale” doctrine applied to foreign produced copies of American copyrighted materials. The scenario of Kirtsaeng v. Wiley goes like this: Mr. Kirtsaeng came to the United States from Thailand to study. In order to supplement his income while in school, he formulated a plan to have his family purchase international editions of textbooks in Thailand, ship them to him in the U.S. and resell them, at a profit, on Ebay. There is no argument about the legitimacy of the textbooks as they were not pirated. The problem which arose was whether the “first sale” doctrine should apply and thus the importation would have been legal. In the internet-centric, global world we live in, it is hard to believe that a product lawfully manufactured overseas would be subject to different laws than one produced here.

Let’s begin by looking at the first sale doctrine. Briefly, Section 109(a) is the principle that once the owner of genuine copyrighted material distributes it, the buyer can treat the object as his/her own and freely sell, lease, or lend the work to another. There are, however, two more clauses of the Copyright Act that were pertinent to this case. First, Section 602 subsection (a) is the importation clause. In essence it says that you cannot import copyrighted material without the permission of the copyright holder. If you do not obtain that permission, it is infringement of their (the copyright holder’s) right to distribute their materials under section 106; which leads us to section 106 subsection (3). Pretty much this section just says the copyright holder has the exclusive right to distribute their work as they see fit. However, it is subject to sections 107 through 122. And low and behold would you believe it, the first sale doctrine is section 109. How circuitous! This seems like an exclusion to the importation clause. The main crux of this case was section 109(a)’s five little words: “lawfully made under this title” and how circuitous the Copyright Act really is. Does “lawfully made under this title” mean subject to the Copyright Act or made where the Copyright Act is applicable? The court chose the non-geographical interpretation and subsequent interdependency of the Copyright Act sections.

Breyer favored an Occam’s razor approach to interpreting the key “five little words” in section 109(a) and thank goodness! Had the vote had swayed the other way you would have been an unwitting mule to copyright infringement having purchased that romantic teen vampire novel (given it was manufactured overseas) before boarding the plane heading home and subsequently “importing” it to the States. Had the vote swayed the other way, once you remembered that you are not a fifteen year old girl and thus the book was a bit age “inappropriate” you could never lawfully rid yourself of it without obtaining the oh-so humble authorization of the copyright holder. And really, who has time for that? Fifteen year old girls that’s who. Instead we shall continue our blissful ignorance that a doctrine we have all taken for granted applies to any good with an American copyright attached to it in the entire world. Doesn’t it just make you want to go out and buy foreign manufactured stuff just to exercise your rights as an American consumer?

In the strangest and slightly disconcerting collection of dissenting Justices (Ginsburg, Kennedy and Scalia) ever, Ginsburg describes her belief that America is hesitant to move towards “international exhaustion.” The flaw in her argument is that so many people have operated as if this decision had always been the law. Breyer touches on this when he quotes the used book dealers saying “they have, ‘operat[ed]…for centuries’ under the assumption that the ‘first sale’ doctrine applies.” It isn’t just the used book dealers, it’s practically every American. Never have I once stopped to consider where my copy of “Twilight” was manufactured before I used it as camp fire kindling. The “world is flat” as Thomas Friedman reminded us in 2005 and now is no time to revert to the ostrich with its head in the sand, isolationist ideology.